Scrutinizing Developments in Texas Appellate Law

Sep 15, 2014

The Texas Supreme Court has two cases set for argument on Tuesday, 9/16/14:

No. 12-0803 -- Texas Dep't of Aging & Disability Servs. v. Cannon -- The plaintiff brought a wrongful-death case against the department and department employees. The department moved to dismiss the employees, arguing that under the Texas Tort Claims Act, the plaintiff could not sue both the department and employees. Before the court ruled on the motion, the plaintiff dropped her tort claims and alleged a federal civil-rights claim instead. The department argues in this appeal that its motion effectively dismissed the employees, because the statute makes dismissal mandatory.

No. 13-0670 -- In re Deepwater Horizon -- This appeal presents a certified question from the Fifth Circuit about liability-insurance coverage for the Deepwater Horizon drilling-rig disaster. BP argues that it is an additional insured under coverage provided to the drilling company, Transocean. This much-watched case involves the interplay between contractual-indemnity provisions and additional-insured provisions.

Sep 09, 2014

A proposed change to the Federal Rules of Appellate Procedure would lower the word limit for principal appellate briefs from 14,000 to 12,500 words and for reply briefs from 7,000 to 6,250 words (hat tip to Emil Kiehne at the New Mexico Appellate Blog). The comment to the proposed rule explains that the 14,000 word limit was based on the prior 50-page limit with an assumption of 280 words per page, but that no one seems to know where that word-per-page number came from. The committee now believes it was an error and proposes a new rule based on 250 words per page.

This should be of interest to Texas lawyers for two reasons. First (obviously), this will impact those who practice regularly in federal court.

Second, we are almost two years into using word limits instead of page limits for briefs in Texas state court. The state-court word limits are actually higher than the current federal limits. After some discussion, the Supreme Court Advisory Committee recommended a 15,000 word limit for principal briefs and a 7,500 word limit on reply briefs, which the Supreme Court adopted. These limits were based on an estimate of 300 words per page. And unlike the federal 280-words-per-page assumption, we know where that estimate came from. Several members of the Advisory Committee analyzed their own briefs and briefs filed in the Texas Supreme Court to come up with that word-count estimate. (This was a hotly debated topic at the Advisory Committee. If you are a true procedure geek (or if you just really need something to read), check it out here. The discussion starts on page 5 and runs through page 35 and again from page 42 to page 45.)

So, what do you think? Will lower limits in federal court crimp your style or are 12,500 words plenty? Also, if the federal courts adopt a lower word limit, should Texas courts consider a lower limit, as well? Let's hear it in the comments.

Also, if you want to make an official comment on the proposed amendments to the federal rules, click here for information about how to do so. The deadline for comments is February 17, 2015.

Dec 02, 2013

Effective December 1, there are a couple of new rules that Fifth Circuit practitioners should be aware of. The first is a change to Federal Rule of Appellate Procedure 28. The revised rule eliminates the separate "Statement of the Case" from the required parts of a brief. Instead, the statement of the case and statement of facts are combined in one section, which the rule describes as a "concise statement of the case." The revised FRAP 28 describes what should be included:

a concise statement of the case setting out the facts relevant to the issues submitted for review, describing the relevant procedural history, and identifying the rulings presented for review, with appropriate references to the record (see Rule 28(e)).

FRAP 28.1 has also been amended to be consistent with FRAP 28. The Fifth Circuit has amended Fifth Circuit Rule 28.3 to conform with the revised FRAP 28 and FRAP 28.1.

The second change relates to the form of record citations. Fifth Circuit Rule 28.2 has been amended to impose a uniform method of citing the record. In single-record appeals, the citation format is ROA.XXXX, where XXXX is the page number of the record. In multiple-record appeals (such as consolidated appeals), the format is ROA.NN-NNNNN.XXXX, where NN-NNNNN is the case number in which the record was filed and XXXX is the page number. The period between each portion of the citation is important.

The genesis of the second change is a cool piece of software that the clerk's office is going to use to add hyperlinks to the record to all briefs. In other words, before the brief is circulated, the clerk's office will run it through this program and every citation to the record will be turned into a hyperlink so that the judges and their staffs can easily view the portion of the record cited.

Oct 09, 2013

A little over a year-and-a-half ago, I posted about the impact that the increasing use of e-readers could have on the debate about whether citations should be in the text or in footnotes. Basically, I argued that footnotes are kind of a pain on e-readers, so it could lead to a bigger push to put citations in the text.

Today, Ray Ward has a really interesting post over at his excellent Louisiana Civil Appeals blog. From the annual appellate advocacy seminar sponsored by the Bar Association of the Fifth Federal Circuit, Ray reports on the increasing use of e-readers at the Fifth Circuit. He also reports on a handy new tool that the clerk's office uses to insert hyperlinks to cases (and eventually to the record) into briefs before they are sent to the court. And Ray suggests that the hyperlinks will be much more useful in the text than in footnotes. Check out the post and Ray's blog.

May 13, 2013

In an opinion issued last week, the Fifth Circuit considered whether its approach to the "stream-of-commerce" theory of personal jurisdiction should be revisited in light of the US Supreme Court's decision in J. McIntyre Machinery, Ltd. v. Nicastro, 131 S. Ct. 2780 (2011). The Court joined United States Court of Appeals for the Federal Circuit in holding that Nicastro did not change the law on the "stream-of-commerce" approach to personal jurisdiction. Ainsworth v. Moffett Engineering, Ltd., No. 60155. The opinion is available here.

The issue in Ainsworth was whether Moffett Engineering could be subject to jurisdiction in Mississippi under a stream-of-commerce theory. This was the first case presenting this issue in the Fifth Circuit since the US Supreme Court's Nicastro decision.

In Nicastro, the Supreme Court held that a manufacturer based in England was not subject to jurisdiction in New Jersey for an injury caused by a machine manufactured in England and sold in New Jersey. The machine at issue was the only one sold in New Jersey and there was no evidence that the manufacturer had specifically targeted the New Jersey market.

The Supreme Court's decision did not produce a majority opinion. A plurality opinion written by Justice Kennedy and joined by Chief Justice Roberts, Justice Scalia, and Justice Thomas reasoned that a defendant could liable under a stream-of-commerce theory only if the defendant "targeted" the fourm. It would not be enough if the defendant might have predicted that its goods would reach the forum.

The Fifth Circuit recognized that the plurality opinion was in tension with Fifth Circuit precedent on the stream-of-commerce theory, but the reasoning of the plurality opinion is not binding precedent. Instead, the Fifth Circuit had to determine the narrowest grounds on which a majority of the Supreme Court agreed. In Nicastro, Justice Breyer authored a concurring opinion joined Justice Alito. The concurrence reasoned that the case could be resolved by simply applying the Supreme Court's existing precedents.

Based on this reasoning, the Fifth Circuit concluded that the controlling rationale for Nicastro was that a single isolated sale in the forum state did not satisfy the existing law on the stream-of-commerce theory of personal jurisdiction. Because the Fifth Circuit concluded that Nicastro did not change the law, it applied prior Fifth Circuit precedents to determine that the exercise of personal juridsiction in Mississippi was proper.

Mar 11, 2013

What should you do when the court takes judicial notice of adjudicative facts without any advance notice that it would be doing so? The Fifth Circuit recently addressed this situation and held (1) that it was not improper for the district court to take judicial notice without giving prior notice to the parties and (2) that the complaining party should have moved for reconsideration to preserve error. Center for Biological Diversity, Inc. v. BP America Prod. Co., 704 F.3d 413, 423 (5th Cir. 2013).

The plaintiff specifically asked that the parties be given advance notice of any facts that would be judicially noticed. But without advance notice, the district court took judicial notice of facts related to the oil well at issue. The Fifth Circuit acknowledged that parties are generally entitled to advance notice and to the opportunity to take discovery about the facts to be judicially noticed. But the Fifth Circuit found that the plaintiff had not preserved error because it should have filed a motion for reconsideration and sought a "retrospective hearing " regarding the judicially noticed facts.

Thus, although a motion for reconsideration is not usually necessary to preserve error, it may be necessary when it is your first opportunity to raise your complaint and have it fully considered by the court.

This result makes sense in light of the general error preservation principle that the lower court must be given notice of the purported error and an opportunity to correct it. If that opportunity first arises after the fact, then a motion for reconsideration may be necessary.

The supplier, Dynegy, invoked the force-majeure clauses after two hurricanes extensively disrupted gas supplies. The buyer, Ergon, argued that the clauses were ambiguous and required Dynegy to buy gas on the spot market to cover the contractual supply obligation.

One clause required Dynegy to remedy the situation "with all reasonable dispatch." The Fifth Circuit held that this language was not ambiguous and that expert testimony about industry practices supported the district court's finding that "reasonable dispatch" did not include a duty to secure replacement gas since Dynegy's suppliers themselves had declared force majeure.

The other clause covered an enumerated list of causes, including hurricanes, as well as "other causes" that "by the exercise of due diligence such party is unable to prevent or overcome." The court held that the quoted language was ambiguous with respect to whether it applied only to "other causes" or also to the enumerated causes. The court held that Dynegy's undisputed expert testimony about industry practices conclusively resolved the ambiguity in Dynegy's favor. Thus, Dynegy had no duty to find replacement gas.

Ergon argued that Dynegy should have a duty to find replacement gas, because even though gas supplies were disrupted, it was possible for Dynegy to find replacement gas on the spot market. The court made the important observation that this would make force-majeure clauses essentially meaningless, because the seller could never invoke the clause if some of the product was available somewhere for some price.

This case provides some important lessons to contract drafters about drafting tighter force-majeure clauses, and to litigators about proving the industry meaning of such clauses.

Nov 13, 2012

In federal court, just as in state court, a notice of appeal is due within 30 days of the judgment or order being appealed. And, just as in state court, certain timely filed postjudgment motions can extend the deadline for the notice of appeal. But the deadline for postjudgment motions in federal court is a potential trap for the unwary. While the notice of appeal deadline is 30 days after judgment, the deadline for many postjudgment motions is 28 days after judgment.

A recent Fifth Circuit case illustrates the danger of an untimely postjudgment motion. See Overstreet v. Joint Facilities Mgmt., LLC (In re Crescent Resource, LLC), No. 11-51141 (5th Cir. Nov. 8, 2012). There, the appellant had filed a motion to modify the judgment under Rule 59(e). Rule 59(e) provides that a motion to modify must be filed within 28 days of the judgment. But the appellant had filed the motion on the 29th day, making the motion untimely. The Fifth Circuit held that the untimely motion could not extend the deadline for the notice of appeal, even if the appellee did not complain about the untimeliness and the district court considered the motion. Thus, the Court dismissed the appeal of the judgment for lack of jurisdiction.

In so doing, the Fifth Circuit joined the majority of its sister circuits, which have held that the notice of appeal deadline cannot be extended by an untimely motion. But there is a circuit split on the issue. See Wilburn v. Robinson, 480 F.3d 1140, 1146-47 (D.C. Cir. 2007) (holding that an untimely motion can still extend the deadline for a notice of appeal).

It is also worth noting that the Fifth Circuit found it did have jurisdiction to consider the district court's denial of the motion to modify the judgment because the appellee had not complained about the untimeliness of the motion. But the standard of review for the motion to modify is extremely deferential, and the Court affirmed the denial.

The lesson here is to carefully calendar postjudgment deadlines. In the Fifth Circuit, an untimely postjudgment motion cannot extend the deadline for the notice of appeal.

Oct 25, 2012

Last term, the Supreme Court issued a landmark decision about the interaction between the Establishment and Free Exercise Clauses of the First Amendment and federal employment discrimination laws. See Hosanna-Tabor Lutheran Church & Sch. v. EEOC, 132 S. Ct. 694 (2012). Yesterday, the Fifth Circuit had its first opportunity to apply the Hosanna-Tabor decision.

In Hosana-Tabor, the Supreme Court upheld the existence of a "ministerial exception" to federal employment discrimination laws. Although that exception had been widely recognized in the circuit courts, the Supreme Court had not yet had occasion to consider it. The ministerial exception recognizes that churches are entitled to make decisions about their ministers without interference from the government. Therefore, a minister cannot sue a church based on employment decisions. Of course, the key issue is whether a person was a "minister." The Supreme Court provided guidance about how the ministerial exception should apply.

Yesterday, the Fifth Circuit issued its decision in Cannata v. Catholic Diocese of Austin. Clickhere to download the opinion. The plaintiff had been employed as the Music Director at St. John Neumann Catholic Church. After he was fired, he sued the church and Catholic Diocese of Austin. Before the Supreme Court issued its opinion in Hosanna-Tabor, the district court granted a motion to dismiss under Rule 12(b)(1) based on the ministerial exception.

The Fifth Circuit first noted that Hosana-Tabor held that the ministerial exception is an affirmative defense, not a jurisdictional bar. Therefore, although it was unclear at the time, the district court should have considered the motion under Rule 12(b)(6), instead of Rule 12(b)(1). But that distinction did not affect the Fifth Circuit's review, because it would consider the same materials under either rule. Moreover, because the motion was decided after extensive discovery and the court considered material outside of the pleadings, the Fifth Circuit held that the motion should have been converted to a Rule 56 motion for summary judgment.

The Fifth Circuit next considered the impact of Hosanna-Tabor on the Fifth Circuit's prior jurisprudence regarding the ministerial exception. The Fifth Circuit had adopted a three-part test to determine whether the exception applies. See Starkman v. Evans, 198 F.3d 173, 176 (5th Cir. 1999). The Court determined that this three-part test was at most invalidated and at least modified by Hosanna-Tabor, because the Supreme Court rejected any "rigid formulas" in favor of a "totality-of-the-circumstances" test.

Applying that test, the Fifth Circuit concluded that Cannata was a minister for purposes of the exception. The Court noted that he selected hymns, trained cantors, and was involved in the presentation of music during Mass. Therefore, the Court affirmed the district court's judgment.

Aug 24, 2012

In its orders for the week of 8/24/12, the Texas Supreme Court did not issue any opinions, but did grant review in the following two cases:

1. In re Nestle USA, Inc. -- This is a direct appeal to the Supreme Court to challenge the state franchise tax.

2. Ewing Constr. Co. v. Amerisure Ins. Co. -- This case involves a certified question from the Fifth Circuit about coverage under a liability policy. The broad issue is whether a claim against a building contractor for defective construction is excluded by the contractual-liability exclusion.